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1984 DIGILAW 501 (ALL)

Nanki Devi v. Satya Narain

1984-07-20

UMESH CHANDRA

body1984
JUDGMENT Umesh Chandra, J. - This appeal raises a simple point for consideration namely as to whether the relief of interest pendentelite and future could be allowed by the executing court. This point arises in the following circumstances:- (1) The plaintiff Satya Narain now deceased and represented by the present respondents filed a suit for recovery of Rs. 7451-7 and as 6 passed with interest pendentelite and future. The suit was dismissed by the Additional Civil Judge on 9-1-61. The appeal was also dismissed on 21-10-61. The Second appeal was allowed by the court on 3-10-66 and the case was remanded to the lower appellate court for rehearing as directed. Thereafter Sri S.C. Misra, IInd Addl. District Judge Kanpur decreed the suit on 23-11-70. The operative portion of the judgment may read as follows :- "For the foregoing reason. I allow the appeal and setting aside the judgment and decree passed by the trail court, direct that the suit of the plaintiff-appellants, who are heirs of the deceased Satay Narain shall stand decreed with costs throughout. 2. The decree was then put in execution and the plaintiff-respondents claimed a sum of Rs. 5438. 50/- as interest pendentelite and future. The judgment debtors-appellant filed an objection under Section 47 Code of Civil Procedure to the effect that interest pendentelite and future has not been allowed by the appellate court and therefore, the execution application so far as it related to the recovery of the amount of interest pendentelite and future was not maintainable. This objection was dismissed by the 1st Addl. Civil Judge, Kanpur on 15-5-72 and judgment debtors' appeal was also dismissed by the District Judge on 31-10-73. Aggrieved, the present appeal has been filed. 3. The learned counsel for the appellant has relied on Section 34 (2) Code of Civil Procedure and has argued that the decree of the lower appellate court put in execution was silent on the point of interest pendentelite and future and therefore, the trial court erred in rejecting the objection. This argument has no force ; Firstly, the suit was for recovery of Rs. 7451-7 an 6 paise with interest pendentelite and future ; at the rate of 6% per annum and the operative portion of the judgment as well as the decree show that the suit for only this amount was not decreed but the decree was passed in the general terms. 7451-7 an 6 paise with interest pendentelite and future ; at the rate of 6% per annum and the operative portion of the judgment as well as the decree show that the suit for only this amount was not decreed but the decree was passed in the general terms. The entire suit including interest and pendentelite and future was decreed. Consequently, all the reliefs claimed by the plaintiff were decreed and the executing court was justified in rejecting the objection. 4. The executing court has power to construe the decree. After considering the reliefs claimed and the judgment of the lower appellate court the executing court was justified in coming to the conclusion that the claim for interest pendentelite and future was also decreed. Thus, decree cannot be said to be silent on this point. The objection under Section 47 Code of Civil Procedure was rightly dismissed and the appeal fails. The appeal is dismissed with costs. The order dated 31-10-73 passed by Sri R.S.L. Khandelwal, District Judge, Kanpur is confirmed.